Memo

TITLE OF BILL : An act to amend the estates, powers and trusts law, in relation to establishing inheritance by a non-marital child; and to repeal certain provisions of such law relating thereto

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Surrogate's Court Advisory Committee.

This measure would clarify the way a non-marital child can establish status to inherit from his or her father under section 4-1.2 of the EPTL. The measure would resolve a split in the appellate courts, which was remedied, in part, by a recent decision of the Appellate Division, Second Department. Matter of Poldrugovaz, 50 AD 3d 117 (2d Dept 2008). The measure also would settle decisional law by establishing two different methods of proof, both using the same clear and convincing evidence standard.

Under section 4-1.2(a)(2) a non-marital child may inherit from his or her father (or the father's side of the family) only if paternity is established in one of the following four ways:(i) an order of filiation (clause (A)); (ii) an acknowledgment signed by the father and filed with the putative father registry (clause (B)); (iii) by clear and convincing evidence that the father has openly and notoriously acknowledged the child as his own (clause (C)); or (iv) a blood genetic marker test, which had been administered to the father together with other evidence (clause (D)). The law has been amended over the years to parallel society's acceptance of the inheritance rights of non-marital children and to reflect recent advancements in science whereby paternity may be established by genetic marker testing.

Since 1993, use of genetic marker tests (DNA) to establish paternity has been discussed in many decisions. The issue initially involved the restriction contained in clause (D) that such a blood test had to be performed during the father's lifetime. In the leading case, Matter of Janis (157 Misc 2d 999 (NY Co. 1993), aff'd210 AD2d 620 (1st Dept 1994)), the court analyzed the history of section 4-1.2(a)(2)(D) and held that a blood genetic marker test (DNA) was admissible only if it were performed before death (see also Matter of Sekanic, 229 AD2d 76 (3rd Dept 1997); Matter of DeLuca, NYLJ, January 15, 1998, at 37, col 2; Matter of Johnson, NYLJ, October 15, 1997, at 37, col 2). After Janis, however, two courts extended use of DNA testing to the father's relatives where such persons sought, or contested, a determination of paternity (Matter of Sandler, 160 Mise 2d 955 (NY Co. 1994) and Matter of Nasert, 192 Misc 2d 682 (Richmond Co. 2002)).

The court in Janis observed "that, notwithstanding this interpretation of 'clause D', post-death genetic marker tests might be admissible under clause (C) of EPTL 4-1.2(a)(2), which allows paternity to be established by clear and convincing evidence...." The prescience of the Jams court became apparent in several subsequent decisions where genetic marker testing (of all types of samples from a decedent's body) was authorized under clause (C) (see Matter of Morningstar, infra; Matter of Poldrugovaz, NYLJ, 10/27/05, at 31, col 3 (Suffolk CO. 2005); Matter of Santos, 196 Misc 2d 972 (Kings Co. 2003); Matter of Bonanno, 192 Misc 2d 86 (NY Co. 2002) (Petitioner sought to disprove paternity); Matter of Thayer, 1 Misc 3d 791 (Madison CO. 2003J (where the father died before the child was born)).

Many of the courts permitting a post-death genetic marker test to be admitted as evidence under clause (C) concluded that the scientific reliability of DNA testing met the standard for clear and convincing proof of paternity. Furthermore, Santos, supra, suggested that where

the results of the DNA test are conclusive (one way or the other) no other evidence should be required.

As noted, EPTL 4-1.2(a)(2)(C) had been construed as having a two-prong test, namely, "clear and convincing evidence of paternity" and "open and notorious acknowledgment by the father." But whether this latter prong had to be established before a court could admit the results of a genetic marker test initially resulted in a split between two appellate departments. The Fourth Department, in Matter of Morningstar (17 AD3d 1060 (4th Dept 2005)), held that a party seeking to prove paternity under clause (C) based upon a genetic marker test need not first establish "open and notorious acknowledgment" before seeking to admit such proof into evidence. The Second Department, in Matter of Davis, 27 . AD3d 124 (2nd Dept 2006)), held that proof of the father's "open and notorious acknowledgment" of the child must be shown before another party could be directed to submit to genetic marker testing.

Recently, the Second Department, in Matter of Poldrugovaz, supra, departed from Davis, holding that a court may use the results of a posthumous genetic marker test under clause (C) provided there is some evidence that decedent acknowledged the non-marital child as his own.

Poldrugovaz summarized the development of the law concerning the rights of non-marital children as intended to "enhance the ability of non-marital children to assert their rights of inheritance" (50 AD3d at 123-124). Where evidence of paternity by a genetic marker test is clear and convincing, the court questioned the necessity of establishing open and notorious acknowledgment by the father. The court then resolved the question as to the degree of proof needed to obtain authorization for genetic marker testing by requiring some proof of open and notorious acknowledgment by the father.

We are now left with the possibility that Poldrugovaz may not be followed in other departments. Accordingly, this measure would facilitate the use of genetic marker testing as a means of proving paternity and eliminate any further inconsistency in the application of the two standards under clause (C). It is noted that, although in most cases, the results of a genetic marker test will be dispositive of the non-marital child's status, it is conceivable that a court may determine for policy or equitable reasons that a father's open and notorious acknowledgment prevails.

Accordingly, this measure merges clauses (C) and (D) of section 4-1.2(a)(2) into a single clause (C) with respect to use of a genetic marker test and recognizes two methods by which a person may establish paternity: the results of a genetic marker test, or by open and notorious acknowledgment of the father during his lifetime. Thus, proof may be in the form of a genetic marker test administered to the father (or close relative at any time), or a party may demonstrate that the father openly and notoriously acknowledged the child as his own. The burden of proof for either method is by clear and convincing evidence.

Clause (D) no longer serves a purpose and should be repealed. Additionally, this measure would amend subdivision (b) to delete the word "legitimate" and substitute "marital child," and to provide that a paternal relative may seek to share in an estate where proof of status meets one of the three requirements provided under 4-1.2(a)(2).

This measure, which would have no fiscal impact on the State, would take effect immediately and apply to the estates of persons dying on or after such effective date.

2008 LEGISLATIVE HISTORY :

OCA 2008-116 Senate 8488 (DeFrancisco) (Rules)

Text

STATE OF NEW YORK
________________________________________________________________________
3682--A
2009-2010 Regular Sessions
IN SENATE
March 27, 2009
___________

Introduced by Sen. SAMPSON -- (at request of the Office of Court Admin-
istration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Judiciary -- reported favorably from
said committee and committed to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the estates, powers and trusts law, in relation to
establishing inheritance by a non-marital child; and to repeal certain
provisions of such law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Clause (C) of subparagraph 2 of paragraph (a) of section
4-1.2 of the estates, powers and trusts law, as amended by chapter 434
of the laws of 1987, is amended to read as follows:
(C) paternity has been established by clear and convincing evidence
[and], WHICH MAY INCLUDE, BUT IS NOT LIMITED TO: (I) EVIDENCE DERIVED
FROM A GENETIC MARKER TEST, OR (II) EVIDENCE THAT the father [of the
child has] openly and notoriously acknowledged the child as his own[;
or], HOWEVER NOTHING IN THIS SECTION REGARDING GENETIC MARKER TESTS
SHALL BE CONSTRUED TO EXPAND OR LIMIT THE CURRENT APPLICATION OF SUBDI-
VISION FOUR OF SECTION FORTY-TWO HUNDRED TEN OF THE PUBLIC HEALTH LAW.
S 2. Clause (D) of subparagraph 2 of paragraph (a) of section 4-1.2 of
the estates, powers and trusts law is REPEALED.
S 3. Paragraph (b) of section 4-1.2 of the estates, powers and trusts
law, as amended by chapter 595 of the laws of 1992, is amended to read
as follows:
(b) If a non-marital child dies, his OR HER surviving spouse, issue,
mother, maternal kindred, father and paternal kindred inherit and are
entitled to letters of administration as if the decedent [were legiti-
mate] WAS A MARITAL CHILD, provided that the father and paternal kindred
may inherit or obtain such letters only if the paternity of the non-mar-

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10093-03-9

S. 3682--A 2

ital child has been established pursuant to ANY OF THE provisions of
[clause (A) of] subparagraph (2) of paragraph (a) [or the father has
signed an instrument acknowledging paternity and filed the same in
accordance with the provisions of clause (B) of subparagraph (2) of
paragraph (a) or paternity has been established by clear and convincing
evidence and the father of the child has openly and notoriously acknowl-
edged the child as his own].
S 4. This act shall take effect immediately and shall apply to the
estates of decedents dying on or after such date.

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